In 2015 Newcastle City Council published a document entitled ‘Vision for Culture’ which had the ambition of creating a city buzzing with creative spirit, offering opportunities for everyone to play their part in creating our culture – continuing to make ours one of the most vibrant cities in Europe. This laudable ambition jars with an authoritarian proposal that would make it a criminal offence to play music or sing songs anywhere on the streets of Newcastle after 8pm, despite clear evidence that buskers make the streets safer and less alienating places, especially at night when genuine antisocial behaviour such as physical violence is much more likely.

What can be done?

The Keep Streets Live Campaign exists to advocate for public spaces that are open to informal offerings of art and music and other community uses. We are against measures that criminalise destitute and marginalised people, and believe that Newcastle’s plans, whatever the council’s underlying motivation, will have a devastating impact upon some of the most vulnerable people in society, whilst also criminalising important cultural activities such as busking. The council are running an online consultation about the proposals which closes on February 8th, and it is vitally important that as many people as possible complete the consultation and inform the council that these draconian and authoritarian measures do not have public support.

We have completed our submission to the consultation and are publishing our responses below for the public record. Please feel free to use our responses as a reference/guide when you complete your submission. It clearly explains the reasons why we are opposed to this PSPO.

If you can, please take a few minutes and complete this consultation, it will make a big difference, and your voice does matter.

KSL Official Response to Consultation

What do you think of the first set of potential things covered in the PSPO? Please tell us your comments on begging:

I am the founder and the director of the Keep Streets Live Campaign, a not for profit company which exists to advocate for public spaces which are open to the arts and other community uses. We are opposed to the use of a PSPO in its entirety in Newcastle because the powers are too wide-ranging and open to misuse. We will indicate separately why we oppose each different aspect of the PSPO in each section, Including begging in the PSPO will impact the poorest and most vulnerable members of society in a disproportionate and manifestly unjust way. The vast majority of people who beg are highly vulnerable and often destitute and are reduced to begging in order to obtain food and shelter. The proposal would mean that a person sat down, without causing any issues to any other person, could face a criminal fine of up to £1000 and a court action which would, in itself, be costly and would in no meaningful way change their behaviour because they would now have a fine that they could not possibly pay, as well as a criminal record which would cause them to be more marginalised and isolated from society. Additionally begging is already illegal under the 1824 Vagrancy Act which gives the police ample powers to seek to prosecute persons for begging if it was deemed to be in the public interest. Instead of giving an enormous range of new delegated powers to council officials which could see a large number of fixed penalty notices given to people with no ability to pay them and a resultant rise in costly magistrate’s court hearings and the mixing up of vulnerable people in the criminal justice system, the council and the police should focus purely on the small minority of people who combine begging with genuinely aggressive and intimidating behaviour and use existing legislation to target those individuals rather than creating a new criminal offence.

2.) Please give us your views on assertive or aggressive (commercial or charity) collection or soliciting for money on the street (this is sometimes called ‘chugging’):

Once again the wording of this prohibition is dangerously vague and open-ended and creates a potentially ambiguous criminal offence of ‘assertive’ charity collection. What objective standard of ‘assertiveness’ or ‘aggressiveness’ is being proposed to evaluate an offence which carries a criminal record and fines of up to £1000? Why is existing public order legislation such as the Public Order Act 1986 which created the offence of causing ‘alarm, harassment or distress’ insufficient to address a situation where there were concerns about the approach of a charity collector? What standard of evidence will be used to establish that this ‘offence’ has occurred? This has been poorly thought through and is most probably unlawful, and would be open to legal challenge.

3.) Please give us your views on busking after 8PM

All mention of busking should be removed from the PSPO.

The Live Music Act 2012, introduced to support the UK cultural economy and promote live music allows for unlicensed performances of live music between 8am and 11pm. The proposal to make busking after 8pm unlawful in Newcastle city centre creates a totally unnecessary and arbitrary criminal offence which will affect the cultural life of the city and puts Newcastle’s regulatory approach at odds with well established norms across the United Kingdom. Busking in the evening creates a sense of colour, atmosphere and place in cities and makes the streets safer. People who walk alone on city streets in the evening report that buskers make them feel safer and make places more welcoming. Additionally there is a wide array of existing legislation such as the Environmental Protection Act 1990 that can be used to address noise nuisance, regardless of the time of day or night. Including busking after 8pm on the PSPO would mean that a busker could be committing a criminal offence just for playing after 8pm, even if no nuisance has been caused to any person and no complaints have been made. This is an arbitrary and perverse outcome and will undermine respect for the rule of law. Newcastle City Council should work alongside the Musician’s Union the Keep Streets Live Campaign to introduce new guidance for busking, designed to promote good practise for buskers regardless of the time of day, and set out clear guidance for resolving disputes amicably. This has been and is being done successfully in Liverpool, York, Chester, Canterbury, Birmingham and elsewhere.

Whilst the proposed powers could in theory apply to a young couple who had bought a bottle of Prosecco for an impromptu summer picnic on the green, these powers could easily be and will most probably be used to target vulnerable and marginalised persons, such as homeless or vulnerably housed persons, or people with mental health problems. Whilst no one could reasonably object to a person facing enforcement action if their behaviour causes alarm, harassment or distress to others, this measure, in contrast allows council officers to target people solely on the basis that they have ‘reasonable grounds’ to believe that they will use an intoxicating substance within the PSPO area. This power would allow officers to seize legally purchased and unopened bottles containing alcohol, even if the person wasn’t drinking the alcohol at the time. As such, it is an unwarranted interference with the personal freedoms of individuals. Also there is no clear mechanism for an officer to establish beyond doubt that a so-called intoxicating substance has not been obtained lawfully and for a lawful, medicinal purpose. The PSPO creates a blanket power which is open to potential misuse. It would be better for the council and the police to focus upon known individuals whose actual behaviour is having a detrimental impact on the local community. These known individuals could be targeted rather than a blanket power which applies to every person, even if their behaviour is having no detrimental impact on any person.

5. Please give us your views on the taking, sale and / or provision of NPS (new psychoactive substances, sometimes called ‘legal highs’):

See above (4) for main response.

In addition, national legislation on this issue is coming into effect this year which the PSPO, at best, duplicates without the safeguards contained in the Act of Parliament.

6.) Are there other things you would like to see included in a PSPO that you feel are detrimental to the quality of life for residents or people visiting Newcastle? Please give us your views:

No

7.) Do you have any other comments about this?

The Keep Streets Live Campaign believes that the use of Public Space Protection Orders is fundamentally problematic because they are open to misuse and create a high risk of criminalising vulnerable people unnecessarily. They create arbitrary new criminal offences from activities that are not, in themselves, harmful, and are, in fact, often beneficial such as ‘busking after 8pm’. They allow council officers and PCSOs to hand out Fixed Penalty Notices on the spot, removing due process and meaning that, a destitute and homeless person fined for begging for example, could end up in a magistrate’s court with a fine they cannot hope to pay, trapping them further into a cycle of deprivation and criminalisation. In addition, the PSPO duplicates existing laws by including offences that are already illegal under existing legislation. This is unnecessary and counterproductive. The council should not implement a PSPO in Newcastle and should, instead, focus on known individuals whose are causing persistent antisocial behaviour and take targeted enforcement action against those persons using existing legislation. With regards to busking and chugging the council should work alongside buskers, professional bodies such as the Musician’s Union to develop a code of practise which establishes clear guidelines and expectations for harmonious relations in the city.

If you sing in the street or a park in the London Borough of Taliban, and a passer-by appreciates your voice, the authorities can surgically remove your vocal tract and sell it on the black market. Ok, that may be a marginally excessive interpretation of the law, but it’s not far off!

Camden’s new powers define busking as ‘provision of entertainment in the street’, so if you haven’t applied and paid for a busking licence and you ARE singing, you’re OK as long as it’s awful and no-one is entertained, but the moment a passer-by enjoys it you have actually stepped over the legal threshold and will be committing a criminal offence. If you have an instrument, they CAN seize and sell it if you don’t pay up to £1000 fine. The barrister representing the joyless Labour council agreed in court that this interpretation of the law was accurate. After a legal challenge, this morning’s decision by Judge Mrs. Justice Patterson, means the laws will now be in force throughout the Borough.

Rolled-Up Hearing

The hearing took place at the High Court on the 27th and 28th Feb, and was a ‘rolled-up hearing’ which means the judge decides whether there are grounds for a Judicial Review, and then if so, decides the outcome of that JR at the same time.

The case was brought against Camden Council by professional busker and founder of the Keep Streets Live campaign, Jonny Walker, who, through crowd-funding, managed to raise much of the money needed to ensure he’d be able to pay agreed ‘protected costs’ in the worst possible outcome of a failed challenge and costs awarded against him.

Leigh Day solicitors hired the services of barrister David Wolfe QC, and Camden turned up in court with their legal team and two barristers, led by Clive Sheldon QC.

I sat in court both days, and heard the legal arguments, which I’ll try to distill down here. At the end of the first day, I was not very optimistic, because the judge, Mrs. Justice Patterson, seemed to be quite combative with David Wolfe, very accommodating with Mr. Sheldon, and was concerned to know how long they’d each need on the second day because she was “mindful that Camden wanted to get on and implement the legislation” and she was hoping to be able to give them a verdict before the weekend!

As it turned out, David Wolfe took his time on the Friday, and also gave her rather a lot to think about, so the hand-down was postponed a further week.

Legal Arguments

Camden’s proposed licensing scheme is based on powers given them under the London Local Authorities Act 2012. This Act allows London authorities to issue penalty notices, create licensing schemes, and gives them other powers to combat identified public nuisance.

Camden Council claim that they have identified busking as causing serious public nuisance in the Borough, and that they have brought in a “light touch” licensing regime which will “encourage” busking in the area while controlling situations that have been identified as causing problems.

Their scheme is Borough-wide, and forces buskers to apply for a license. If the musician intends to use any amplification, they have to jump through all sorts of hoops, pay a higher fee, and wait for weeks. Otherwise, they pay a £19 fee several days in advance, and are still subject to all manner of conditions. Breach of conditions, or busking without a licence, is a criminal offence, with up to £1000 fine, and Camden also have the power to seize musical instruments and/or amplification equipment, and sell it if any fine is unpaid.

The challenge had two main aspects. First, David Wolfe questioned whether Camden had provided enough evidence to trigger the legislation in the first place. Second, he questioned whether the legislation was compatible with human rights convention requirements over freedom of expression.

Camden mainly relied on a log of over a hundred telephone complaints received by the Council, but Mr. Wolfe went through these in detail, questioning whether they showed evidence that busking had been, is being, or is likely to cause ‘undue nuisance’. Camden’s scheme exempts certain groups and activities, including, for instance, morris dancers and Hare Krishna drummers. He pointed out that most entries on the log provided unsatisfactory information to be able to reach any conclusion about ‘undue nuisance’, and that one of the complaints was about morris dancers, and so won’t be resolved, and others spoke of ‘drummers’ which may well have been the exempt Krishnas given the absence of any other info.

He spoke at length about possible absurd scenarios raised by the rules. ‘Busking’ is defined as ‘provision of entertainment in the street’ (not necessarily for gain), so he gave example of someone singing a song on a sunny day on the way to work. If singing to himself, he is free to carry on, but if a fellow pedestrian starts enjoying the song and is entertained by it, then the singer starts to commit a criminal offence, and would have to either stop singing, or ask the other person to go away. A similar scene might be a young lad singing and playing the guitar in Lincoln’s Inn Fields. No problem there, and no licence required. As he’s particularly talented though, he draws a small crowd. He’s now become a criminal! Mr. Wolfe pointed out that under the human rights convention it was imperative for any criminal transgression to be “sufficiently foreseeable” which clearly it was not.

Although, Camden of course said they wouldn’t enforce the law in that situation, and a judge wouldn’t convict even if they did, the obvious response from the challengers is, why make it law then?

In terms of human rights, the argument is whether the restrictions are proportionate, respond to a pressing need, and that no less restrictive means are available to control the problem.

Camden claimed that it’s not over-restrictive because people can still busk in the rest of the country!

Mr. Wolfe referred to case law to show that supervision should be strict over ANY restriction, and that just because SOME singers MAY have caused genuine NUISANCE in a certain AREA at a PARTICULAR TIME, this couldn’t give rise to a restriction on ALL singers throughout the whole Borough at all times.

Camden stuck by their complaints log to show a ‘pressing need’, and they claimed other laws were not adequate to combat problems.

Mr. Wolfe pointed out that “less restrictive means” didn’t necessarily mean other already available law, and that Camden had framed bad legislation which could be rewritten to be far less restrictive. He asked also why the complaint log hadn’t contained an “action taken” column. This might have provided further evidence, but its absence suggested Camden may have actually breached an existing Section 79 requirement to respond to complaints, instead writing new legislation that may have been entirely unnecessary.

The hearing finished at around 3.30 on the Friday, and Mrs. Justice Patterson said she had plenty to ponder, was away the following week, and so would not be able to hand-down her verdict until this week.

This morning, the High court delivered its verdict backing the Council’s new policy. Jonny’s solicitors will lodge an appeal.

Statement by the Keep Streets Live Campaign:

“The generous support of many hundreds of people enabled to bring an historic High court challenge against Camden’s decision to introduce compulsory licenses for any person wishing to sing or play music in a public space within the borough.

We believe that the scheme is too wide in its definition of busking, that it has been introduced in response to inadequate evidence, to apply across the entire geographical area of the borough, and that it is disproportionate for the purposes of the Human Rights Act by interfering with the right to Freedom of Expression in a way which is neither necessary nor proportionate.

In the light of these points, which were convincingly argued in the High Court, we are disappointed that Mrs. Justice Patterson has seemingly taken at face value Camden’s argument that people making music on the streets have a low level of protection under Article 10 of the Human Rights Act, and has ruled that Camden’s sceme is necessary, proportionate and lawful.

We profoundly disagree with her judgement and will now seek to have this case heard by the Court of Appeal and to ask Camden not to enforce their policy unitl the case is heard by a higher court.

Informal and spontaneous performances of music are a vital part of Camden’s rich and diverse cultural heritage and need to be protected. Under Camden’s policy, even singing a protest song without a licence could be a criminal offence. From our perspective this makes the excessive interference with Article 10 rights clear and unambiguous. In a democratic society, singing in the streets should never be a potential criminal offence.

On behalf of the Keep Streets Live campaign I would like to re-iterate our desire to work alongside Camden Council and residents to address their genuine concerns and to develop a collaborative ‘best practice’ guide for busking, if they will withdraw their contentious policy.

In Liverpool, which like Camden, is a city famous for music and grassroots culture, we are working alongside the local council to develop practical guidance for street entertainment that works for all parties.

We invite Camden to learn from this approach and work with us, and not against us.”

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Repeal London’s Anti-Busking laws

Help us stop the criminalisation of culture makers in London by asking the government to strike down laws that allow local authorities to confiscate instruments, impose heavy fines and give musicians and artists a criminal record